State Of Washington, Res. v. Charles Alan Chappelle, App.

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
STATE OF WASHINGTON, No. 70337-4-1
Respondent,
v.
CHARLES ALAN CHAPPELLE, JR., UNPUBLISHED OPINION \o
Appellant. FILED: September 22, 2014
Verellen, A.C.J. — Charles Chappelle appeals his conviction for second degree
assault, claiming that the trial court erred when it discharged defense counsel and
permitted him to represent himself on the second day of trial and that he lacked the
necessary materials to conduct an adequate pro se defense. He additionally argues
that he was denied his right to effective, conflict-free counsel at his motion for a new
trial. Viewing the record as a whole, Chappelle knowingly, intelligently and voluntarily
waived his right to counsel. He was also provided with reasonable accommodations
given the late date at which he requested to represent himself. Furthermore, Chappelle
fails to show that defense counsel appointed to represent him in his motion for a new
trial possessed an actual conflict of interest affecting her performance. Finally, the
argument in Chappelle's statement of additional grounds lacks merit. Accordingly, we
affirm.
No. 70337-4-1/2
FACTS
On June 9, 2012, Amr Elshahawany and several friends were celebrating a
birthday at a nightclub in downtown Seattle. The group left the nightclub when it closed,
and Elshahawany entered a nearby alley to urinate. Elshahawany noticed Chappelle
standing nearby and staring at him. The two men exchanged words. Elshahawany
then saw something come out of Chappelle's hand and felt Chappelle hit him in the
face. Elshahawany suffered a deep laceration that went all the way through his cheek.
He lost three liters of blood before medical personnel were able to stop the bleeding and
repair the wound. The State charged Chappelle with second degree assault with a
deadly weapon.
Carlos Gonzales of Northwest Defenders Association was assigned to represent
Chappelle. At the omnibus hearing on October 26, 2012, Chappelle filed a pro se
motion to dismiss and motion for change of counsel. The court informed Chappelle that
it would not hear his motion to dismiss because Chappelle was represented by counsel
but would hear his motion for change of counsel. Chappelle argued:
I'd like to change counsel because my witnesses haven't been seen, urn, I
haven't, urn, had any real representation, I've been working on another
case the whole time, a higher profile case, and I'm just now at trial. And
also the State wants to amend the charges, and I was being forced to go
to trial first on the assault two with a deadly weapon. Now the State wants
to amend the charges, and like I said, I have -- witnesses haven't even
been called upon, I haven't been given fair representation.111
Gonzales responded that he had attempted to contact Chappelle's proposed witnesses
multiple times but was unsuccessful. The court denied Chappelle's motion.
1 Report of Proceedings (RP) (Oct. 26, 2012) at 4.
No. 70337-4-1/3
On November 8, 2012, the first day of trial, the State and Gonzales argued
pretrial motions. Chappelle did not express any dissatisfaction with Gonzales.
However, on November 13, 2012, the second day of trial, Chappelle attempted to file
another pro se motion prior to jury selection. Though it was not clear what relief he was
seeking, Chappelle's motion contained the phrases "council [sic] refused to call
witness," "affidavit of prejudice" and "to change council [sic]."2 Gonzales stated,
So I don't feel comfortable handing this up, your Honor. But it just seems
unclear what... he wants to do is discharge counsel or to go pro se.
That's what I'm unclear about, because even after being told by the court
[not] to file motions he's still trying to file motions.[3]
The following exchange occurred:
GONZALES: Well, do you want to make a motion to discharge me or
make a motion to go pro se?
DEFENDANT: Yes. I make a motion to discharge counsel. This is
affidavit of prejudice. I have been trying to ~
THE COURT: Excuse me. Just a second. An affidavit of prejudice?
Against who? Me?
DEFENDANT: Affidavit of the prejudice against Court. Period. Out of
the interests for ~[4]
The trial court attempted to ascertain Chappelle's intentions, explaining that Chappelle
could not file an affidavit of prejudice because it had already made discretionary rulings.
Chappelle clarified his intention:
2 Clerk's Papers at 61-69.
3RP(Nov. 13, 2012) at 5.
4 Id. at 5-6.
No. 70337-4-1/4
This affidavit is, yes, to take you off the case. To take my counsel off the
case. I haven't been getting a fair representation, I don't feel, the whole
time. The motions that I want to have filed from the beginning when I was
injured . . . haven't been filed. There are no witnesses that's the - I never
went to sign continuance in any speedy rights, and none of that, all this
whole time they try force me to go to trial without seeing police reports,
and no witness there first. And another judge overturned that. So the
whole time I had --1 haven't been represented all the issues that's really
been going on with me.[5]
Chappelle then proceeded to complain about his health problems and his treatment by
jail staff. The trial court continued to attempt to ascertain what Chappelle wanted:
GONZALES: I think the only timely motion in front of this Court is
questionable. Timely is the motion to discharge counsel,
but other than that an affidavit of prejudice, I think, is,
since you made rulings already, it's too late for an
affidavit.
[PROSECUTOR]: Correct. I think the only motion he's close to making at
this point is a motion to discharge counsel, and I don't
know if that's really what he wants to do or not.
THE COURT: You want to be without counsel? You want to represent
yourself?
DEFENDANT: No. I have actually had several lawyers that try to take
my case. I try to change counsel, and motion to deny --
was denied. All my motion to dismiss was denied. All my
motions are never heard. Not given a chance to speak.
No. No, you can't speak. They never address any of my
issues. Oh, no. No. No. Because we don't want this on
the record. The whole time. No, you can't speak. Oh,
you can't speak on any issues. When these are actually
issues that's going on. Ongoing with me.
THE COURT: If that's a motion to go pro se, it is very equivocal.
GONZALES: Well, pro se means do you want to represent yourself?
THE COURT: Are you asking to represent yourself?
DEFENDANT: Yes.
5RP(Nov. 13, 2012) at 7.
No. 70337-4-1/5
THE COURT: You -- yes. You want to go without counsel?
DEFENDANT: If I have to go with an intern, whatever I have to do. I'm
trying here.
THE COURT: A what?
DEFENDANT: If I have to get help, yes, I represent myself too. I have
been representing myself the whole time basically.
COURT: I wouldn't say, that's still a pretty equivocal statement,
counsel. Are you attempting to discharge --
DEFENDANT: Yes.
COURT: -- Mr. Gonzales, and to represent yourself pro se in this
case?
DEFENDANT: Yes.
COURT: You understand that if I allow Mr. Gonzales to be
discharged, you will be by yourself through the entire
case representing yourself?
DEFENDANT: Yes.
COURT: You will be required to follow appropriate -
DEFENDANT: Yes.
COURT: And when I make motions and in limine rulings you will be
required to abide by them.
DEFENDANT: Yes.!6'
After briefly involving Chappelle's uncle in the inquiry, the colloquy continued.
DEFENDANT: Okay. Yes, sir. I want to go forward. I want to go pro se.
I do want co-counsel.
THE COURT: There is no co-counsel.
DEFENDANT: No co-counsel?
6RP(Nov. 13, 2012) at 10-12.
No. 70337-4-1/6
THE COURT: You go pro se, you represent yourself.
DEFENDANT: Okay. Well, that's fine.
THE COURT: You represent yourself, you are up here, you make all
your own decisions. You have no lawyer.
DEFENDANT: Okay.
THE COURT: You understand that? You are facing a -- I'm told that if
convicted you will have an offender score of a seven.
You will have a standard range of 43 to 57 months, plus
enhancement for the deadly weapon.
DEFENDANT: That's fine. I never had a deadly weapon.
THE COURT: Let me finish. So you are looking at a range of 55 to 69
months and a $10,000 fine.
DEFENDANT: Okay.
THE COURT: With maximum sentence of 120 months.
DEFENDANT: Okay.
THE COURT: You ever study anything about the law?
DEFENDANT: Just incarcerated.
THE COURT- You have been incarcerated, but never formally studied
the law?
DEFENDANT: No.
THE COURT- Have you ever represented yourself in the past?
DEFENDANT: No, I have not.
THE COURT: Have you ever attempted to represent anyone in a court
of law?
DEFENDANT: I have not. I have attempted but -
THE COURT: You know you are charged with assault in the second
degree, which is a more serious offense, which is also a
strike offense?
No. 70337-4-1/7
DEFENDANT: Yes.
THE COURT: I already told you what the potential sentences are; do
you understand that?
DEFENDANT: Yes, I do.
THE COURT: You understand you represent yourself[,] I will not tell you
how to try the case or involve in any way, give you legal
advice?
DEFENDANT: YesJ71
The trial court briefly quizzed Chappelle on his knowledge of the rules of evidence and
criminal procedure, with which Chappelle demonstrated some familiarity.
THE COURT: Anyone put any pressure on you to waive right to
counsel?
DEFENDANT: No.
THE COURT: So this is all your decision?
DEFENDANT: Yes.
THE COURT: Finally, is it your desire to be without an attorney in this
case?
DEFENDANT: Yes.
THE COURT: You understand we are going to immediately start picking
a jury?
DEFENDANT: Yes.
THE COURT: There are no continuances.181
Chappelle requested the trial court file the motion he had previously handed up, to
which the trial court agreed.
7 Id at 13-14.
8 Id. at 16.
No. 70337-4-1/8
THE COURT: Are you ready to start picking a jury?
DEFENDANT: Yeah. Start picking a jury today?
THE COURT: Yeah.
DEFENDANT: Okay.
THE COURT: As soon as we have got jurors. I don't know if we have
jurors down there or not. Do we have enough jurors?
GONZALES: And, Your Honor, am I excused? This is the question I
have for, your Honor. I'm on standby on another case, I
don't know if you wanted me to --
THE COURT: I'm not having standby.
GONZALES: So inform 1201 I'm ready for my next trial?
THE COURT: You're ready for your next trial if his ultimate decision is
unequivocal that he intends to represent himself, and he
intends to stick by that decision throughout the whole trial
and abide by my rulings. We are not going to hear
anything about your claims against the police department
and some other incidents.
DEFENDANT: No. It's not about claiming. I'm going to court for assault
two, right? That's what I'm charged with?
THE COURT: That's right. Assault two with
[PROSECUTOR]: Deadly weapon.
THE COURT: Deadly weapon.
DEFENDANT: Okay. Yup.
THE COURT: I will tell you it is a - you may be very bright. You may
think you are doing the right thing. I would strongly
advise against what you are doing. I think any judge who
heard you would strongly advise against what you are
doing, but you have a constitutional right to do it. And so
long as you make the unequivocal decision to proceed
pro se I am required to allow it. Now, is that your
decision?
8
No. 70337-4-1/9
DEFENDANT: That's my decision.
THE COURT: Mr. Gonzales, you are hereby discharged.[9]
The deputy prosecutor clarified:
[PROSECUTOR]: Right. And I wanted to also make it clear that he is not
seeking a continuance even though Your Honor said you
wouldn't give one, but I want to make it clear that he is not
seeking a continuance and he is prepared to go today.
That's the only thing I wanted to clear up.
DEFENDANT: I would just like to file my motions to the court. I'm not
seeking a continuance. I just like my paperwork to be
filed to the court.™
After a recess to secure a venire, Chappelle again raised the issue of his
representation:
DEFENDANT: I would just like to ask at this time of the record, motion
filed for me to have co-counsel, and also I would like for
my jury instructions, ask for motion to find my jury
instructions later, since I don't have them today with me.
If I can file them tomorrow maybe.
THE COURT- Let me suggest, sir, ifyou are pro se that a co-counsel
representation does not exist. You either are represented
by counsel or you are not. And you have unequivocally
told me you wanted to discharge counsel. It was not a
good decision. I told you it wasn't a good decision. But
having co-counsel with yourself is not an arrangement
that's recognized under our court system.
DEFENDANT: Okay. Well, Ijust like, on the record, that I wanted to file
a motion.
THE COURT: What's that?
DEFENDANT: Like to put on the record that I would like to file motion for
counsel.
9 Id at 17-19.
10 Id. at 20.
No. 70337-4-1/10
THE COURT: For counsel?
DEFENDANT: Uh-huh.
THE COURT: You have already discharged counsel.
DEFENDANT: Yeah, I wanted to discharge that counsel for ineffective
assistance.
THE COURT: That was not your motion. Your motion was to go pro se.
I allowed that motion. Despite the fact that I told you that
it was not a wise thing to do. You told me unequivocally
you wanted to discharge counsel. I told you if you
discharge counsel you were pro se, and you would
remain pro se. As I understand it, your attorney has now
gone off to try another case for a different defendant.1111
A supporter of Chappelle's in the courtroom informed the trial court that what he
believed Chappelle wanted was different court-appointed counsel, not to represent
himself. Chappelle said, "Yes; that's correct."12 The trial court explained:
Well, that was not the motion he made. The motion he made .. . was to
go pro se. . . . I explained to him the hazards of going pro se. . . . I went
through a long colloquy with him concerning his request to go pro se. I
asked him if he was asking me unequivocally that he wanted to be pro se.
I told him there would be no standby counsel. He would be by himself.
He acknowledged he understood all that. He allowed his counsel to be
discharged, and his counsel is now offtrying another case.[13]
The trial court began discussing the procedure for jury selection. As the venire entered
the courtroom, Chappelle stated, "So the motion to appoint new counsel, that's the
motion I would like to put forth, but I can't put that motion--."14 The trial court did not
respond and jury selection began.
11 Jd at 23-24.
12 Id at 26.
13 ]d at 26-27.
14 Id. at 28.
10
No. 70337-4-1/11
That afternoon, during the direct examination of the State's first witness,
Chappelle claimed he had not seen one of the State's exhibits. The trial court
immediately recessed the trial until the following day. The deputy prosecutor contacted
Gonzales, who reported he had previously provided Chappelle with a redacted copy of
discovery. The deputy prosecutor determined that the only documents Chappelle had
not been previously provided were transcripts of witness interviews. She provided the
King County jail an electronic copy of the witness interviews that evening to give to
Chappelle, and provided Chappelle a hard copy the following morning.
Trial continued on November 14, 2012 with no further requests from Chappelle.
On November 15, 2012, Chappelle again claimed that he was missing discovery
materials, including police reports, medical records and his booking photo. The deputy
prosecutor provided Chappelle with additional copies of the materials he requested.
After four days of testimony, the jury found Chappelle guilty of second degree
assault but rejected the deadly weapon allegation.
Following his conviction, Chappelle requested court-appointed counsel to file a
motion for a new trial. Ramona Brandes of Northwest Defenders Association was
assigned to represent Chappelle. Brandes argued that Chappelle was entitled to a new
trial because he did not knowingly, intelligently and voluntarily waive his right to counsel
and because the State did not timely provide him with discovery so that he could
adequately defend himself.
At the hearing on the motion, the State raised the concern that a conflict of
interest existed because Gonzales and Brandes were employed by the same public
11
No. 70337-4-1/12
defense agency and Chappelle had requested to proceed pro se because he did not
believe Gonzales was advocating for him effectively. Brandes asserted there was no
conflict of interest because Chappelle's motion for a new trial was not based on
ineffective assistance of counsel. The trial court asked Chappelle if he was
"comfortable going forward this morning with Ms. Brandes . . . even though I'm now told
that Ms. Brandes and Mr. Gonzales are in the same firm?"15 Chappelle replied that he
was. The trial court asked again, "If you think there's a conflict, let me know. If not, I'm
asking ifyou waive any conflict that there might be with your current counsel."16
Chappelle responded, "I don't have any conflicts."17
Gonzales appeared at the hearing in response to a subpoena issued by the
State. Gonzales told the trial court that he had provided Chappelle a redacted copy of
discovery in September 2012. The deputy prosecutor reiterated that on November 14,
2012, she provided Chappelle with transcripts of all interviews with both State and
defense witnesses, and on November 15, 2012, following a complaint from Chappelle
that he still did not have discovery, she provided him with another full copy of redacted
discovery. Chappelle agreed that he had a redacted copy of discovery at the work
release facility at which he resided prior to trial, but he had not been permitted to take it
with him when he was transferred to the county jail the night before his trial began.
15RP(Apr. 30, 2013) at 5.
16 id at 6.
17 Id.
12
No. 70337-4-1/13
The trial court denied Chappelle's motion. In doing so, the trial court made the
following findings:
1. This court presided over the pretrial motions and trial in this matter.
2. This court engaged in a lengthy colloquy with the defendant. When
the defendant, in the beginning of the colloquy, made an equivocal
request to proceed pro se, the court clarified with the defendant the
exact nature of his request and he subsequently made repeated and
unequivocal requests to proceed pro se.
3. This court advised the defendant, and the defendant was aware, of
the nature of his charges, the standard range and maximum
punishment allowed by law. The defendant was also aware that
standby counsel would not be afforded and a continuance would not
be afforded should the defendant elect to proceed pro se. After such
advisement, the defendant unequivocally repeated his desire to
proceed to trial pro se and waive his right to counsel.
4. Despite the defendant's later requests for counsel and for
continuances, the defendant's request to proceed pro se was
unequivocal and his waiver of the right to counsel was knowingly,
intelligently and voluntarily made.
5. This Court ordered the State to provide discovery to the defendant
and the Court is satisfied the State did so. This Court takes judicial
notice and finds the defendant did, in fact, have discovery materials
in his possession while cross-examining witnesses.1181
Chappelle appeals.
DISCUSSION
Waiver of Right to Counsel
The constitutional right to proceed without counsel is guaranteed to a criminal
defendant by both article I, section 22 of the Washington State Constitution and the
Sixth Amendment to the United States Constitution.19 "This right is so fundamental that
18 Clerk's Papers at 291-92.
19 State v. Barker, 35 Wash. App. 388, 391-92, 667 P.2d 108 (1983).
13
No. 70337-4-1/14
it is afforded despite its potentially detrimental impact on both the defendant and the
administration of justice."20 To execute this right, a defendant must affirmatively request
to proceed pro se, and the request must be unequivocal when viewed in the context of
the record as a whole.21 Moreover, because a request to proceed pro se involves the
waiver of the constitutional right to the assistance of counsel, the request must be made
knowingly, voluntarily, and intelligently.22
We review the trial court's grant of a motion to proceed pro se for abuse of
discretion.23 A trial court abuses its discretion when its decision is "manifestly
unreasonable" or "'rests on facts unsupported in the record or was reached by applying
the wrong legal standard.'"24
Chappelle claims that he did not knowingly, intelligently and voluntarily waive his
right to counsel. He argues that his request to proceed pro se was equivocal because
the record showed he did not want to represent himself but instead wanted different
court-appointed counsel.
We agree with the trial court that Chappelle's initial statements were equivocal.
On October 26, Chappelle asked for different court-appointed counsel. The court
denied Chappelle's request because Chappelle had not articulated any grounds for
20 State v. Madsen, 168 Wash. 2d 496, 503, 229 P.3d 714 (2010).
21 State v. Luvene. 127 Wash. 2d 690, 698-99, 903 P.2d 960 (1995).
22 Citv of Bellevue v. Acrev, 103 Wash. 2d 203, 208-09, 691 P.2d 957 (1984).
23 State v. Breedlove. 79 Wash. App. 101, 106, 900 P.2d 586 (1995).
24 Madsen, 168 Wash. 2d at 504 (quoting State v. Rohrich, 149 Wash. 2d 647, 654, 71
P.3d 638 (2003)).
14
No. 70337-4-1/15
such a change. On November 13, Chappelle asked to "discharge" counsel and "take
my counsel off the case."25 When the trial court inquired if Chappelle wanted to proceed
pro se, Chappelle stated that he did not, and expressed his displeasure that the court
on October 26 would not appoint him new counsel.
However, Chappelle persisted in complaining about Gonzales's performance.
When the trial court asked again if Chappelle wanted to discharge Gonzales and
represent himself, Chappelle said he did. The trial court stated that "if I allow Mr.
Gonzales to be discharged, you will be by yourself through the entire case representing
yourself."26 Chappelle stated that he understood. The trial court explained that
Chappelle would have to abide by all court rulings, and Chappelle agreed. When
Chappelle asked if he could have co-counsel, the court made it very clear that he could
not. "You represent yourself, you are up here, you make all your own decisions. You
have no lawyer."27 The trial court properly informed Chappelle of the charge, the
standard range, the maximum sentence, and the existence of procedural rules. The trial
court concluded, "Finally, is it your desire to be without an attorney in this case?"28
Chappelle said yes. The trial court then turned to Gonzales and stated that he would be
discharged "if [Chappelle's] ultimate decision is unequivocal that he intends to represent
himself."29 The trial court once again addressed Chappelle, stating that he did not
25RP(Nov. 13, 2012) at 7, 9.
26 \± at 11.
27 Id at 13.
28 Id at 16.
29 Id. at 18.
15
No. 70337-4-1/16
recommend that Chappelle proceed pro se but that he was required to allow it as long as
Chappelle made the unequivocal decision to do so. The trial court asked Chappelle if
that was his decision. Chappelle responded, "That's my decision."30 We find that this
constituted an unequivocal request to proceed pro se and a knowing, intelligent and
voluntary waiver of the right to counsel. That Chappelle later renewed his requests for
substitution of counsel or co-counsel does not retroactively render his request equivocal.
Relying upon State v. Brittain.31 Chappelle argues that the trial court's failure to
rule on his request for substitution of counsel demonstrates that his waiver was not
knowing, intelligent, or voluntary because he was not made aware that "his only choices
were continuing the trial with his current attorney or continuing the trial pro se."32 But in
Brittain, the defendant specifically conditioned his waiver of the right to counsel on the
outcome of his request for substitution of counsel.33 Chappelle did not. Furthermore,
Chappelle had previously moved for substitution of counsel on October 26, claiming
Gonzales had not contacted witnesses critical to his defense. A different judge denied
Chappelle's request. Chappelle's subsequent request for substitution of counsel was
vague and did not provide the trial court with any legitimate or sufficient grounds.
Chappelle further contends that his waiver was not knowing, intelligent and
voluntary because the trial court did not conduct a sufficient colloquy regarding the
dangers of self-representation. He argues the trial court did not inquire into his level of
30]dat19.
31 38 Wash. App. 740, 689 P.2d 1095 (1984),
32 Reply Br. at 3.
33 Brittain, 38 Wash. App. at 742.
16
No. 70337-4-1/17
education, explain the process for jury selection or making objections, or discuss the
elements of the charged crime. But "there are no steadfast rules for determining
whether a defendant's waiver of the right to assistance of counsel is validly made."34
Rather,
the preferred procedure for determining the validity of a waiver involves
the trial court's colloquy with the defendant, conducted on the record. This
colloquy should include a discussion about the seriousness of the charge,
the possible maximum penalty involved, and the existence of technical
procedural rules governing the presentation ofthe accused's defense.[35]
The record shows that Chappelle was familiar with the charge, including the deadly
weapon allegation, the standard range, and the statutory maximum sentence.
Furthermore, the trial court discussed the rules of evidence and criminal procedure with
Chappelle, going as far to quiz Chappelle on the definition of "hearsay" and the purpose
of a suppression hearing. Finally, the trial court informed Chappelle of the difficulty of
proceeding pro se and advised him not to do so. Based on the colloquy, the trial court
did not abuse its discretion in finding that Chappelle knowingly, intelligently, and
voluntarily waived his right to counsel.
Materials to Conduct a Defense
Article I, section 22 of the Washington Constitution "affords a pretrial detainee
who has exercised his constitutional right to represent himself a right of reasonable
access to state-provided resources that will enable him to prepare a meaningful pro se
defense."36 What measures are necessary or appropriate to constitute reasonable
34 State v. Modica, 136 Wash. App. 434, 441, 149 P.3d 446 (2006).
35 Id
36 State v. Silva. 107 Wash. App. 605, 622, 27 P.3d 663 (2001).
17
No. 70337-4-1/18
access lies within the sound discretion of the trial court after consideration of all the
circumstances.37
Chappelle contends that he was denied his constitutional right to present a
defense because he lacked the necessary resources to do so as a pro se litigant.
Specifically, Chappelle contends that he was not provided discovery in a timely fashion,
was not given access to an investigator or a telephone, did not have legal materials
such as copies of the relevant court rules or statutes, and was not appointed standby
counsel.
Chappelle had been provided a redacted copy of discovery in the months prior to
trial. Because he did not have it in his possession at the time he requested to proceed
pro se, the State provided him additional copies of the documents he requested,
including witness interviews, police reports, medical records and his booking photo.
The record shows Chappelle cross-examined all of the State's witnesses and attempted
to impeach many of them with their reports or prior statements. In light of the fact that
Chappelle requested to proceed pro se on the second day of trial and stated he was not
seeking a continuance, Chappelle was provided with reasonable discovery materials
with which to conduct his defense.
Chappelle's remaining claims also lack merit. Though Chappelle argues he was
denied the services of an investigator, "[t]here is no authority holding that the right of
self-representation embodies a right to have an investigator assigned to the
37 Id. at 622-23.
18
No. 70337-4-1/19
defendant."38 Furthermore, Chappelle does not explain how his defense was impacted
by the lack of a telephone. Despite his incarceration, Chappelle was able to schedule a
witness to testify on his behalf. And though Chappelle asserts he had no opportunity to
locate any other witnesses, the record is devoid of evidence that other such witnesses
existed. Chappelle's claim that he was not provided with any legal materials is similarly
unsupported by the record.
Finally, Chappelle contends the trial court erred by not appointing standby
counsel to assist him. But there is no absolute right for a pro se defendant to have
standby counsel.39 We review a trial court's refusal to appoint standby counsel for
abuse of discretion.40 Chappelle fails to explain how the trial court abused its discretion
in this regard.
Conflict of Interest
The Sixth Amendment guarantees a criminal defendant the right to effective
assistance of counsel which is free from any conflict of interest.41 But to establish that a
conflict of interest deprived him or her of effective assistance of counsel, a defendant
must show that an actual conflict adversely affected the attorney's performance in some
way.42 "'[A] mere theoretical division of loyalties'" is insufficient.43 This court reviews de
novo whether circumstances demonstrate a conflict of interest.44
38 ]d at 624.
39 State v. DeWeese, 117 Wash. 2d 369, 379, 816 P.2d 1 (1991).
40 Locks v. Sumner, 703 F.2d 403, 407-08 (9th Cir.1983).
41 Wood v. Georgia, 450 U.S. 261. 271, 101 S. Ct. 1097, 67 L. Ed. 2d 220 (1981);
State v. Davis, 141 Wash. 2d 798, 860, 10 P.3d 977 (2000).
42 State v. Dhaliwal, 150 Wash. 2d 559, 571, 79 P.3d 432 (2003).
19
No. 70337-4-1/20
Chappelle argues that Gonzales was constitutionally ineffective for failing to
provide him with discovery materials when he was discharged. He argues that,
because Brandes worked in the same public defense agency as Gonzales, she had a
conflict of interest because the relationship prevented her from revealing Mr. Gonzales'
ethical violation or using it as the basis for a new trial.
Chappelle does not show that the alleged conflict affected Brandes' performance.
Chappelle's claim that Gonzales was constitutionally ineffective is premised on Rule of
Professional Conduct 1.16(d), which requires an attorney, upon termination of
representation, to turn over "papers and property to which the client is entitled." But to
satisfy the test for ineffective assistance of counsel, a defendant must demonstrate both
(1) that his attorney's representation was deficient, i.e., that it fell below an objective
standard of reasonableness, and (2) resulting prejudice, i.e., a reasonable probability
that, but for counsel's deficient performance, the result of the proceeding would have
been different.45 Even if Gonzales was ethically bound to provide Chappelle with his
client file when the trial court discharged him as counsel, without a showing of prejudice,
this failure does not constitute ineffective assistance of counsel.46 Because Chappelle
does not demonstrate that the outcome of the proceeding would have been different
43 Id. at 570 (quoting Mickens v. Taylor, 535 U.S. 162, 171, 122 S. Ct. 1237, 152
L. Ed. 2d 291 (2002)).
44 State v. Vicuna. 119 Wash. App. 26, 30-31, 79 P.3d 1 (2003).
45 State v. McFarland, 127 Wash. 2d 322, 334-35, 899 P.2d 1251 (1995).
46 See In re Pers. Restraint of Gomez, 180 Wash. 2d 337, 349, 325 P.3d 142(2014)
("the RPCs do not 'embody the constitutional standard for effective assistance of
counsel'") (quoting State v. White, 80 Wash. App. 406, 412-13, 907 P.2d 310 (1995)).
20
No. 70337-4-1/21
had he been provided with his client file at the time Gonzales left the courtroom,
Gonzales was not constitutionally ineffective. Because Gonzales was not ineffective,
we cannot infer, as Chappelle urges us to do, that Brandes failed to claim ineffective
assistance as a basis for a new trial because of her working relationship with Gonzales.
Statement of Additional Grounds
In a pro se statement of additional grounds, Chappelle contends that the trial
court violated his constitutional right to counsel of his choice when it denied his request
to substitute Gonzales with retained counsel. Where a defendant retains counsel, the
Sixth Amendment encompasses the right to counsel of his or her choice.47 But the right
to retain counsel of choice is not unlimited. In considering a motion to substitute
retained counsel, "the trial court must weigh the defendant's right to choose his counsel
against the public's interest in the prompt and efficient administration of justice."48 One
factor the trial court must consider is whether available counsel is prepared to go to
trial.49 We review a trial court's decision regarding a defendant's motion to substitute
retained counsel for abuse of discretion.50
Chappelle requested to substitute Gonzales with retained counsel on the second
day of trial. Though Chappelle asserted there were attorneys willing to take him as a
client, he did not identify any by name nor inform the trial court of their availability. In
47 United States v. Gonzalez-Lopez, 548 U.S. 140, 148, 126 S. Ct. 2557, 165 L.
Ed. 2d 409 (2006).
48 State v. Aquirre, 168 Wash. 2d 350, 365, 229 P.3d 669 (2010).
49 State v. Hampton, No. 69601-7-1, slip. op. at 12-13 (Aug. 11, 2014); State v.
Price, 126 Wash. App. 617, 632, 109 P.3d 27 (2005).
50 Price. 126 Wash. App. at 632.
21
No. 70337-4-1/22
light of these facts, the trial court did not abuse its discretion in denying Chappelle's
request to substitute retained counsel.51
Affirmed.
WE CONCUR:
^ ^tQjl/iViR f,<
51 Chappelle's remaining claims are adequately addressed in his appellate
counsel's brief.
22